Lawyers in abortion murder case say fetal deaths occurred in N.J.

Lawyers for a doctor charged with killing five viable fetuses at an Elkton clinic said in a court motion filed Friday that Maryland lacks jurisdiction because the deaths occurred in New Jersey, and the charges should be thrown out.

Steven C. Brigham, of Voorhees, N.J., faces five counts of first-degree murder and other charges. Another doctor, Nicola I. Riley, is charged with one count of first-degree murder. Both have been freed on bail pending trial.

The motion filed by Brigham's attorneys — C. Thomas Brown and former Maryland public defender Nancy S. Forster — criticizes the indictment for "cryptically" identifying all but one of the fetuses by numbers, such as "CR 2-103."

The motion also says that "the place where the fetal demise occurred was in New Jersey and not in Maryland, thus depriving the state of territorial jurisdiction. … Unless the state's actual intent is to prohibit lawful abortions, the essential element of murder of a viable fetus is the actual death of the fetus and not the evacuation of the dead fetus. The death of the fetuses that are the subject of counts one through eight all occurred in New Jersey."

The Elkton cases mark the first time the state's fetal homicide law has been used to target a doctor performing an abortion. Brigham's attorneys argue that he is immune from prosecution because Maryland's fetal homicide law says doctors cannot be held liable "for fetal deaths that occur in the course of administering lawful medical care."

Maryland law generally prohibits abortions when fetuses have a reasonable likelihood of sustained life outside the womb, but allows exceptions when the mother's life or health is in danger.

The Cecil County state's attorney, who did not return phone calls seeking comment Friday, has said the case puts him in "uncharted territory." Prosecutors have not yet filed responses to motions by attorneys for Brigham and Riley.

The abortion that triggered the police investigation occurred in August 2010 when an 18-year-old began a procedure in New Jersey, in which her uterus was dilated. A Maryland physicians board said the doctors had the woman drive herself to the Elkton clinic, where police said her uterus ruptured and she was rushed to a hospital.

Maryland regulators have criticized Riley and Brigham for starting abortions in one state and finishing them in another. Riley's medical license has been suspended in Maryland; Brigham was never licensed in the state.

But the motion filed Friday alleges for the first time that the fetuses subject to the criminal complaint were all dead before the women reached the clinic in Elkton. Police have said they found nearly three dozen fetuses in the Elkton clinic's freezer, some at 20 to 35 weeks of gestation.

Last week, Riley's attorneys filed a motion arguing that the state law is illegal because it counters a woman's constitutionally protected right to have an abortion. The attorneys contended that the law was really aimed at curbing domestic violence against pregnant women — for example, in an assault that led to the death of an unborn child, a husband might be charged under the law. Brigham's attorneys echoed that theme on Friday.

A tentative court date to argue motions has been set for May in Cecil County Circuit Court.